Psychiatric Injury Flashcards
Under which tort does a claim for psychiatric injury fall?
Claimant’s (C) who suffer psychiatric damage (nervous shock) can claim in Negligence, rules refined to take account of special nature of damage.
Personal injury damages may include pain & suffering (covers mental) if flows from original physical injury.
Psychiatric damage rules apply where there is no physical injury.
What are the general restrictions on claims forpsychiatric injury?
psychiatric damage limited by 2 requirements:
a) harm suffered is medically recognised condition & it is sudden not gradual damage
b) C falls under the category of PV or SV
These restrictions aim to determine genuine claims, prevent opening floodgates & limit possible liability for defendants (D)
What is a medically recognised condition?
Ackner: .. law gives no damages if the psychiatric injury was not induced by shock… (Alcock v South Yorkshire Police [1992])
medically recognised conditions: personality disorder (Chadwick v British Transport Commission [1967]) / PTSD (Leach v Gloucestershire Constabulary [1999]) / pathological grief (Kralj v McGrath [1986])
insufficient: normal grief (Kralj v McGrath [1986]) / distress (Vernon v Bosley [1997]) / fear: normal emotion (Hicks v South Yorkshire Police [1992])
Will a claim succeed if the nervous shock suffered gradually and not by the sudden event?
psychiatric damage must be brought on by sudden event
insufficient: even if foreseeable C, under strain, may gradually suffer psychiatric harm
ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310
Lord Ackner: … ‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying sight or sound or a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system…
To whom the D owe a duty not to cause psychiatric injury?
D must owe C duty of care.
Difficult to prove in cases of psychiatric damage, only duty if C a reasonably foreseeable victim.
Cs who suffer psychiatric damage (medically recognised condition suddenly induced by shock) categorised as primary or secondary victims
classification in relation to their proximity to incident, with different criteria applied to determine if duty owed
Who are PVs and when they can successfully claim?
D owes primary victim duty of care not to cause pure psychiatric damage / if risk physical injury foreseeable
What are the facts and principles of Page v Smith?
PAGE V SMITH [1996] AC 155
FACTS:
plaintiff (P) involved in minor car accident, caused by D’s negligence
P suffered no physical injuries, but since accident P unable to work due to chronic & permanent ME (P previously suffered from mild, sporadic ME)
ISSUE:
was a duty of care owed?
HELD:
duty of care owed: P was primary victim because he was involved in the accident
Lord Lloyd: .. A primary victim is someone was in the actual area of danger or reasonably believed he was in danger. A secondary victim is someone who witnesses injury to another or fears for the safety of another…
primary victims: owed duty of care in relation to pure psychiatric damage, if risk of physical injury was foreseeable (risk of psychiatric harm does not need to be foreseeable)
Lord Lloyd: .. In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law…
What are the facts and principles of DULIEU V WHITE & SONS [1901] 2 KB 669?
DULIEU V WHITE & SONS [1901] 2 KB 669
FACTS:
Ds negligently drove horse drawn cart into a pub & P, pregnant barmaid, suffered shock leading to a miscarriage
ISSUE:
was a duty of care owed?
HELD:
duty of care owed: was foreseeable that Ds’ negligence would cause P reasonably fear for her own safety & shock induced, recognised physical condition
D owes primary victim duty of care not to cause pure psychiatric damage, if risk of physical injury was foreseeable
Who are secondary victims?
–> less closely involved in incident than primary victim, therefore test for establishing duty of care more stringent
–> secondary victim must have suffered medically recognised condition as result of sudden shock
additional requirements: leading case, relates to Hillsborough disaster (large number of football supporters were killed & injured in incident caused by negligence of police officers who allowed overcrowding in the stands)
What requirements must be satisfied by secondary victims?
ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310
FACTS:
Ps were relatives of victims of Hillsborough disaster
Ps were secondary victims who suffered pure psychiatric harm (it was assumed Ps could show they suffered PTSD)
some Ps were spectators at football ground & others witnessed events on television
Ds (police force) admitted negligence allowing overcrowding but denied owing duty of care to spectators in relation to pure psychiatric harm
ISSUE:
was a duty of care owed?
HELD:
no duty of care: Ps could not recover damages for psychiatric harm
House of Lords: test to impose duty of care to secondary victims:
foreseeability of psychiatric harm: reasonably foreseeable a person of normal fortitude in P’s position would suffer psychiatric illness
proximity of relationship: P must have close relationship of love & affection with person endangered by D’s negligence
proximity in time and space: P must be present at incident or immediate aftermath
proximity of perception: P must see or hear incident or immediate aftermath, with his own senses
requirements narrow D’s liability towards secondary victims
Need the harm be foreseeable if C is a SV?
foreseeability of psychiatric harm is determined by objective test: is it reasonably foreseeable that person of normal fortitude in C’s position would suffer psychiatric harm?
What does proximity of relationship mean?
secondary victim must have close relationship of love & affection with immediate victim
rebuttable presumption there is close ties if: parent, child, spouse & C may argue in other relationships sufficient closeness
House of Lords suggested relationship of bystander may be sufficient
ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [1992] 1 AC 310
Lord Ackner: .. [for example] a petrol tanker careering out of control into a school in session and bursting into flames. I would not be prepared to rule out a potential claim by a passer-by so shocked by the scene as to suffer psychiatric illness…
however later case seems to suggest bystander not sufficiently proximate relationship
MCFARLANE V EE CALEDONIA LTD [1994] 2 ALL ER 1
Stuart-Smith LJ: .. In my judgment both as a matter of principle and policy the Court should not extend the duty to those who are mere bystanders or witnesses of horrific events unless there is a sufficient degree of proximity, which requires both nearness in time and place and a close relationship of love and affection between plaintiff and victim…
What does proximity of time and space and perception mean??
approved in Alcock / P family car crash / hospital 1hr / time & space sufficient: immediate aftermath / victims same condition (McLoughlin v O’Brian [1982])
time & space insufficient: brother in law / mortuary / 8hrs (Alcock v South Yorkshire Police [1992])
time & space sufficient: mother / mortuary / 2hrs (Galli-Atkinson v Seghal [2003])
perception / Lord Wilberforce: .. The shock must come through sight or hearing of the event or of its immediate aftermath… (McLoughlin v O’Brian [1982])
tv / no perception proximity: not identifiable individuals (ethics code) / not equivalent actual sight or hearing (Alcock v South Yorkshire Police [1992])
When the D will owe a duty to rescuers?
Rescuers / P.I. / after helping at accident / caused D’s negligence.
crawled under train / DoC owed: in danger as rescuer (Chadwick v British Transport Commission [1967])
oil rig / ship 100m away / no DoC: bystander not rescuer (McFarlane v EE Caledonia Ltd [1994])
police / Hillsborough / HoL: not primary victims / not within range foreseeable physical injury / PD result witnessing immediate
aftermath / rescuer only primary if in danger or reasonably believes is / reversed Frost CoA (White v South Yorkshire Police [1999)
How to prove breach and causation?
Breach of duty and causation
C must also show D was in breach of duty of care & breach caused damage
remoteness of damage can raise some issues (especially egg shell rule)
primary victim: can rely on egg shell rule, as in Page v Smith [1996]
secondary victim: must show psychiatric damage was objectively, reasonably foreseeable (person of normal fortitude in C’s position would suffer psychiatric damage), if test satisfied duty of care established & C may then rely on egg shell rule if suffers psychiatric damage greater than would be expected
